IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

FILED
MAY 29 1998

v.            No. LR-C-97-328

CITIZENS FOR AN HONEST GOVERNMENT, INC.
d/b/a INTEGRITY FILMS; JEREMIAH FILMS, INC.;
and PAT MATRISCIANA
Defendants

DEFENDANTS' BRIEF IN SUPPORT OF RESPONSE TO
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
AND TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT


Table of Contents

I. Introduction

II. The alleged libel in Obstruction of Justice and the defense

III. The First Amendment defense under New York Times Co. v. Sullivan

A. New York Times standard

B. The plaintiffs are public figures

1. Gertz and Fitzhugh

2. New York Times/Rosenblatt/St. Amant standard

3. The powers of sheriffs and their deputies make them "public figures"

a. Arkansas law

b. Practical considerations and reality

4. The subject of the alleged defamation relates to plaintiffs' position

C. The subject matter of Obstruction of Justice relates to plaintiffs' position and touches on their fitness for office

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1. The New York Times/Monitor Patriot standard

2. The accusations of Obstruction of Justice

3. These allegations are a matter of "public concern"

D. The plaintiffs cannot show that the defendants acted with reckless disregard for the truth

1. The reckless disregard requirement

2. The reckless disregard requirement promotes First Amendment values

3. What defendants relied upon

a. Linda Ives

b. Jean Duffey

c. John Brown

i. Brown's affidavit for plaintiffs

ii. Information contradicting Brown's affidavit

iii. Brown's post-affidavit telephone call to Matrisciana

4. The fact defendants are not "mainstream media" is irrelevant

IV. The proof of actual malice or reckless disregard is wanting

A. They investigated and drew conclusions

B. The fact they did not do what plaintiffs would have done does not make them reckless under the New York Times standard

C. Defendants' expert witness concludes that the defendants acted responsibly

V. Conclusion

Certificate of Service

Table of Exhibits 46

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I. Introduction

The plaintiffs moved for partial summary judgment on the issue of liability. The defendants now move for summary judgment on the ground that the alleged defamatory statement in the film is protected under the First Amendment. In this regard, the defendants contend that the plaintiffs are "public figures" and the subject matter of the film is a matter of "public concern." Therefore, plaintiffs must show that the defendants acted with actual malice or at least reckless disregard for the truth. Defendants submit that they fail in that burden as a matter of law, and the defendants' motion for summary judgment should be granted.

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Court sustained a summary judgment for the defendant in a libel case. The Court held that the evidentiary standard of the New York Times rule, stated infra, should be applied in summary judgment motions:

    In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

Id. at 255-56.

II. The alleged libel of Obstruction of Justice and the defense

The alleged libel in this case is a statement in a videotaped documentary that was independently produced by the defendants. Entitled Obstruction of Justice: The Mena Connection (hereinafter just Obstruction of Justice), the film discusses various alleged criminal acts and their coverups by law enforcement or other government officials in Arkansas surrounding the

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deaths of Kevin Ives and Don Henry on Saline County railroad tracks the night of August 22- 23, 1987.1 The deaths are commonly known as "the train deaths" in the video and in the website devoted to this controversy at http://www.idfiles.com. The murders of Kevin Ives and Don Henry have been the subject of media attention since they happened. See, e.g. the news-


    1 The box the video comes in states as follows:

    Saline County, Arkansas

    Two teenage boys stumble upon a major drug operation. The boys are brutally murdered and their bodies placed on railroad tracks to give the appearance of a train accident. Soon thereafter, half a dozen witnesses to the crime are found dead; another mysteriously vanishes; others are put away in prison on false charges.

      · Why were numerous county, state, and federal government investigations blocked?
      · Why was a thirty-month federal-grand-jury investigation abruptly shut down?
      · Why did the FBI tell one boy's grieving parents, "You should accept the fact that a crime has not been committed?"

        This story of murder, drugs, corruption, and cover-ups, involves high ranking government officials, reaching up to the most powerful office in the world. It shows that interference from sinister political allies continues to protect these criminals from prosecution.

        This is also a real life drama of heroes who for the first time come forward to tell their complete stories. Hear the truth from: a crusading mother who refused to be deterred from finding those guilty of murdering her son--- the head of a drug task force who in fear for her life, was forced into hiding--- a lone homicide detective, who risked his life and refused to give up this case.

        Integrity Films presents in its entirety, one of America's most famous unsolved mysteries; a story that the mainstream media doesn't have the guts to tell. You must know the truth - because only you can stop the Obstruction of Justice in America.

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      paper articles in DX 25.2 The murders have been the subject of seven local, state, and federal investigations, including two grand jury investigations. None of these investigations have produced any substantive results one way or the other, except that the Saline County Special Grand Jury concluded that the Ives and Henry deaths were homicides and not accidental deaths as originally reported by the State Medical Examiner. The grand jury's report of December 28, 1988, states, in pertinent part, as follows:

        The Grand jury was empaneled on the 27th. of April, 1988. The stated purpose for the calling of the Grand Jury was to investigate the deaths of Don Henry and Kevin Ives. We have met a total of 23 times and have received evidence from approximately 125 witnesses. ... Dr. Joseph Burton has graciously billed the county for only a fraction of the time he and his staff have spent on the case. Richard Garrett has put in many long hours and incurred numerous expenses above and beyond his responsibilities and deputy prosecutor. Special Deputy Prosecutor Dan Harmon has served without expectation or request for payment form the county. Mr. Garrett and Mr. Harmon have made trips to Missouri, Oklahoma, Texas, New Jersey and North Carolina.

      . . .

        The deaths of Don Henry and Kevin Ives were definitely the result of foul play. We arrived at this conclusion after careful examination of the evidence offered by Dr. Joseph Burton. Dr. Burton's testimony is released with his permission and made part of this report. Dr. Malak's testimony cannot be released at this time.

      . . .

        We urge law enforcement agencies, the prosecuting attorney's office to continue the investigation into the deaths of Don Henry and Kevin Ives and into the drug problem in Saline County.

      DX 9, dated December 28, 1988.

      Obstruction of Justice is the story of three people involved in the investigations; one from the inside and two from the outside. One of them, Linda Ives, is the mother of Kevin Ives.


        2 DX 25 is a collection of newspaper reports from the Arkansas Democrat, Arkansas Gazette, Arkansas Democrat-Gazette, Arkansas Times, and Benton Courier about the train deaths, law enforcement issues and alleged corruption in Saline County. Linda Ives has kept this compilation since the death of her son. DX 25 covers the period from the deaths in 1987 to 1996.

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      She still wants to know why her son was murdered over a decade ago and why the murderers of Kevin Ives and Don Henry have never been brought to justice, in spite of there being seven investigations and a list of suspects. Therefore, this film discusses a matter of serious public concern in this community.

      The part that plaintiffs complain of names them, and it states as follows:

      Eyewitnesses have implicated several people in the murders and subsequent cover-up including Prosecutor Dan Harmon, Deputy Prosecutor Richard Garrett, Sheriff Jim Steed, and Officers Jay Campbell, Kirk Lane, and Danny Allen.

    A graphic on the screen at that point states:

    SUSPECTS IMPLICATED IN IVES/HENRY
    MURDERS AND COVER-UPS

    DAN HARMON, Prosecutor
    RICHARD GARRETT, Deputy Prosecutor
    JIM STEED, Sheriff
    JAY CAMPBELL, Officer
    KIRK LANE, Officer
    DANNY ALLEN, Officer

    The film is DX 1 and the full script is DX 1A.

    As a result of this statement in the film, Officers Campbell and Lane filed this diversity3 libel action against the producer and distributor of the film, Citizens for an Honest Government, Inc. (d/b/a Integrity Films), Jeremiah Films, Inc., and their principal, Pat Matrisciana. The defense is that the statements are protected speech under the First Amendment, the plaintiffs are "public figures," and plaintiffs cannot show that the statements were made with reckless disre-


      3 The film was videotaped in Arkansas, Texas, California, and elsewhere, edited and manufactured in California, and distributed nationwide. The subject matter is in Arkansas, the plaintiffs are from Arkansas, and the defendants are from California. Therefore, it can safely be assumed that the substantive law of defamation of the law of Arkansas applies. See, e.g. Lloyd v. Gerber Products Co., 260 F.Supp. 735 (W.D.Ark. 1960).

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    gard of their falsity. The fact that defendants cannot necessarily prove that plaintiffs committed murder is not the point. The point is that the murders of Kevin Ives and Don Henry, and the curious way public officials have dealt with the murders, opens this matter to intense public scrutiny, comment, and debate. Indeed, the murders cry out for public scrutiny, comment, and debate, particularly since the law enforcement mechanism of this community has utterly failed in how it has handled this matter. Thus, defendants are free to publicly comment on it as long as they do not act with reckless disregard for the truth. In this case, the plaintiffs cannot show at this point that the defendants acted with reckless disregard. Therefore, defendants should prevail, and summary judgment should be granted in defendants' favor.

    III. The First Amendment defense under New York Times Co. v. Sullivan

    Defendants contend that the questioned speech in this case is protected under the First Amendment and governed by the standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). They contend that defendants are "public figures" under that case, so a more stringent standard applies in viewing whether the plaintiffs' case is sufficient to go to trial.

    A. New York Times K Sullivan standard

    In New York Times Co. v. Sullivan, the Supreme Court held that, when the plaintiff was a "public figure" and the subject of the alleged defamation was a matter of public concern, state libel law had to be viewed through the First Amendment.

      Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

      The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the peo-

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    pie." Roth v. United States, 354 U.S. 476, 484. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369. "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U.S. 252, 270, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." N.A.A.C.P. v. Button, 371 U.S. 415, 429. The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y. 1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:

      "Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

    Id. at 269-70 (footnotes omitted).

    This recent example underscores our argument: Contrary to the misguided beliefs of Kenneth Starr,4 the First Amendment has nothing to do with truth, particularly where truth is a


      4 Starr was questioned about why he subpoenaed Sidney Blumenthal, a White House lawyer, before a federal grand jury to explain public comments critical of Starr and his investigation of President Clinton's supposed sexual escapades with Monica Lewinsky. See also the text accompanying note 18, infra.

      Starr replied to the criticism by saying, "The First Amendment is interested in the truth."

      That comment brought a rebuke Sunday from Sen. Arlen Spector, R-Pa., who criticized Starr and said, "I think the First Amendment is not intended only for

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    relative concept, as it often can be.5 Where one goes always depends upon the direction taken,"[a]nd so, where one comes out on a case depends upon where one goes in." United States v.Rabinowitz, 339 U.S. 56, 69 (1950) (FRANKFURTER, J., dissenting).

    The First Amendment exists in our society to promote the free exchange of ideas, and, from that, the American people can make up their own minds about what is "truth." That is the whole point behind why we have a First Amendment in the Bill of Rights and one of the reasons why July 4th is a holiday and not just another day. The First Amendment was never intended to protect only the truth. Id. at 270-71:

      Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4; De Jonge v. Oregon, 299 U.S. 353. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

      Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth -- whether administered by judges, juries, or administrative officials -- and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525-526. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N.A.A.C.P. v. Button, 371 U.S. 415, 445. As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U.S. 296, 310, the Court declared:


      what somebody may think is the truth. It is intended for freedom of speech."

    "Analysis: White House Continues to Attack," New York Times, March 2, 1998 (at www.nytimes.com).

    5 Even Justice Cardozo recognized that truth can be relative. BENJAMIN CARDOZO, SELECTED WRITINGS 149 (Hall ed.l947) (the truth of juristic philosophy is relative under the common law).

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      "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy."

    That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need * * * to survive," N.A.A.C.P. v. Button, 371 U.S. 415, 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:

      "Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. * * * The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. * * * Whatever is added to the field of libel is taken from the field of free debate."

    Id. at 270-72 (footnotes omitted).

    Thus, the New York Times standard is that, when the person being talked about is a "public figure" and the matter being talked about is a matter of "public concern," the plaintiff must show that the defendant made the statement with knowledge that it was false or with reckless disregard of its probable falsity. See Masson v. New Yorker Magazine, 501 U.S. 496, 510-11 (1991):

      When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Mere negligence does not suffice. Rather, the

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      plaintiff must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication," St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or acted with a "high degree of awareness of . . . probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964).

      Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will. See Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970). We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation, and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, n. 7 (1989). In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.

    B. The plaintiffs are public figures

    1. Gertz and Fitzhugh

    The plaintiffs seek to apply Little Rock Newspapers, Inc. v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997),6 and show that they are not public figures. Fitzhugh stated that "[s]ince Gertz [v. Robert Welch, Inc., 418 U.S. 323, 329 n. 2 (1974)], courts have construed the term 'public figure' narrowly, with a greater emphasis on the plaintiff's status as it relates to the subject of the defamation." Id. at 580, 954 S.W.2d at 924 (emphasis added).

      Whether an individual is a public officiall or a public figure is a mixed question of fact and law that is for the trial court to determine. See, e.g. Gertz, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). In Gertz, the Supreme Court held that public figures normally enjoy greater access to effective channels of communication and, thus, have more realistic opportunities to counteract false statements than do private individuals. The Court described public figures as those persons who:

      have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either


      6 They also adopt several pages of Fitzhugh as their argument without attribution.

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    event, they invite attention and comment.

    Id. at 579, 954 S.W.2d at 924. See id. at 581, 954 S.W.2d at 925, discussing Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1075 (1980), holding that a lawyer was not a public figure for defamation purposes, even though he used to be the U.S. Attorney for the Western District of Arkansas. Fitzhugh had ceased being a public figure by the time his defamation occurred, and the alleged defamation had nothing to do with his being a former U.S. Attorney. The Arkansas Democrat really had to stretch to make its public figure defense try to fly in Fitzhugh, and it couldn't.

    But this obviously is not the only way a person can be a public figure. Thus, one can become a public figure merely because of the position that he or she holds; in this case, deputy sheriffs. Here, however, plaintiffs are local law enforcement officers, and the subject of the defamation is law enforcement corruption. Their names came up during the investigation, they have no alibi, and, aside from Mrs. Ives, at least one former investigator, John Brown, still considers them suspects.

    2. New York Times/Rosenblatt/St. Amant standard

    Whether a person is a "public figure" under New York Times v. Sullivan, 376 U.S. 254 (1964), was articulated in Rosenblatt v. Baer, 383 U.S. 75, 85 (1966), where the Court said:

      We remarked in New York Times that we had no occasion "to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included." 376 U.S., at 283, n. 23. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed "a profound national commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." 376 U.S., at 270. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of

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      government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. (Emphasis and bracketed material in original)

    In applying this standard, the Court indicated that a Louisiana deputy sheriff was a "public official" under the New York Times standard in St. Amant v. Louisiana, 390 U.S. 727, 730 & n. 2 (1968) ("The Louisiana Supreme Court concluded, after considering state law, that a deputy sheriff has 'substantial responsibility for or control over the conduct of governmental affairs,' the test established by Rosenblatt v. Baer, 383 U.S. 75, 85 (1966), 'at least where law enforcement and police functions are concerned.' . . .").

    3. The powers of sheriffs and their deputies make them "public officials"

    a. Arkansas law

    Arkansas sheriffs are law enforcement officials charged with enforcing the law in their county and state. Ark. Code Ann. § 14-15-501(a) provides for the powers of a sheriff and states as follows:

      Each sheriff shall be a conservator of the peace in his county and shall cause all offenders against the laws of this state, in his view or hearing, to enter into recognizance to keep the peace and appear at the next term of the circuit court of the county and, on the failure of the offender to enter into recognizance, to commit him to jail.

    Ark. Code Ann. § 14-15-503 provides for deputy sheriffs, and it states as follows:

    (a) Every deputy sheriff appointed as provided by law shall possess all the powers of his principal and may perform any of the duties required by law to be performed by the sheriff.

    (b) Deputy sheriffs are authorized to make arrests for misdemeanor offenses and felony offenses and exercise all-other powers as deputy sheriffs while in the course of their employment for planned community property owners' associations or suburban improvement districts.

    (c) Every deputy sheriff so appointed shall possess the minimum qualifica-

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    tions as provided by law.

    The Arkansas Supreme Court has held that local law enforcement officers are "public figures" for defamation purposes. Lancaster v. Daily Banner-News Publishing Co., Inc., 274 Ark. 145, 622 S.W.2d 671 (1981) (city police officer); Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982) (sheriff); Hollowell v. Arkansas Democrat Newspaper, 293 Ark. 329, 330, 737 S.W.2d 646, 647 (1987) (deputy sheriff; "[t]hat he was a public official is not seriously disputed"); Karr v. Townsend, 606 F.Supp. 1121, 1131 (W.D. Ark. 1985) (deputy sheriff).

    b. Practical considerations and reality

    As a practical matter, police officers in American society are vested with tremendous legal and practical power in dealing with the public to: hassle, detain, arrest and search their persons, search and seize their property, invade their privacy, point guns at them, jail them erroneously and even physically harm them by the use of force in making an arrest or preventing an alleged crime. And, unless it can be shown that any of this conduct by an officer is "objectively unreasonable," the officer can neither be sued nor prosecuted for his actions. Graham v. Connor, 490 U.S. 386, 397 (1989). Negligence plays no role in § 1983 litigation. Parratt v. Taylor, 451 U.S. 527 (1981); Daniels v. Williams, 474 U.S. 327, 333 (1986); Davidson v. Cannon, 474 U.S. 344, 347 (1986). See, e.g., County of Sacramento v. Lewis, 1998 WL 259980 (U.S., May 26, 1998) (death from a police chase did not create civil rights liability); Britt v. Little Rock Police Department, 721 F.Supp. 189 (E.D.Ark.1989) (same); Mills v. Smith, 656 F.2d 337, 339 & n.2 (8th Cir.1981) (per curiam) (officer who accidentally shot arrestee when he lost his balance while holding a gun on arrestee at point blank range could not be sued under § 1983 because his conduct was, at worst, negligence).

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    The Supreme Court has effectively held that law enforcement officers be sued under the civil rights laws for negligently failing to determine that the person they arrested on a facially valid arrest warrant is the person named in the warrant. Baker v. McCollan, 443 U.S. 137, 145 (1979) ("The Constitution does not guarantee that only the guilty will be arrested.").7 In addition, a citizen cannot sue under 42 U.S.C. § 1983 in federal court for alleged defamation by a police officer. Paul v. Davis, 424 U.S. 693, 708-09 (1976). Mere damage to reputation from a police officer's conduct is not actionable. Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) (right to be free from defamation by government official is not a "liberty interest").

    In light of United States v. Whren, 116 S.Ct. 1769 (1996), police officers now have the virtual power over all citizens to literally make up reasons for an alleged traffic stop and use the occasion to look for reasons to further detain the occupants and search, if possible. All it takes is probable cause to believe that any traffic stop was justified. How does a citizen defend against that? It is not lost on law enforcement that they can stop anybody for any reason and get away with it. Do the courts stop it? No; they say that "we credit the testimony of the officer that there was reason to believe that a traffic offense occurred," even when they suspect or believe the contrary. The police always get the benefit of the doubt. And, in so doing, all of us have markedly lost constitutional protection. Thus, the law vests in law enforcement tremendous amounts of discretion to enforce the law and immunity from it, and it falls upon the citizen to accept that government needs to be able to make mistakes for the sake of the common good.


      7 Similarly, Arkansas law would provide no remedy either because it permits suits against the individual (and not the governmental unit) for intentional torts only. Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985); Battle v. Harris, 298 Ark. 241, 765 S.W.2d 431 (1989).

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    People are arrested every day when they have committed no crime, just because the person for some reason was an offender to the officer's sensibilities, was the wrong race, or was perceived as a prize. If one can prove malice or objective unreasonableness, it might be a civil rights violation, but, again, the law enforcement officer always gets the benefit of the doubt from the finder of fact. It is a reality that we deal with every day in the criminal justice system. Also, under Graham, the mere fact excessive force was used by an officer in making an arrest does not mean that an arrest was unlawful. See Mills v. Smith, supra

    4. The subject of the alleged defamation relates to plaintiffs' position

    The plaintiffs are law enforcement officers. The witnesses that put them at the Ranchette Grocery the night of the murders saw that they were driving an unmarked police car. The subject matter of Obstruction of Justice is law enforcement incompetence and corruption in Saline County in protecting law enforcement officers alleged to be involved in wrongdoing. Also, their position as law enforcement officers gives them unique insight into the criminal justice system and how to manipulate it. Cf. Bell v. City of Milwaukee, 746 F.2d 1205, 1260-64 (7th Cir.1984); Hampton v. Hanrahan, 600 F.2d 600, 626-27 (7th Cir.1970), revd. in part on other grounds, 446 U.S. 754 (1980).

    C. The subject matter of Obstruction' of Justice relates to plaintiffs' position and touches on their fitness for office

    1. The New York Times/Monitor Patriot standard

    Under New York Times Co. v. Sullivan, anything that might touch on a public official's fitness for office may be published under First Amendment subject to the actual malice standard. In Monitor Patriot Co. v. Roy, 401 U.S. 265, 276-77 (1971), the Court held that the First Amendment requires such a standard:

    It is perhaps unavoidable that in the area of tension between the Constitution

    16

    and the various state laws of defamation there will be some uncertainty as to what publications are and what are not protected. The mental element of "knowing or reckless disregard" required under the New York Times test, for example, is not always easy of ascertainment. "Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law." St. Amant v. Thompson, 390 U.S. 727, 730-731. But there is a major, and in this case decisive, difference between liability based on a standard of care, and liability based on a judgment of the "relevance" of a past incident of criminal conduct to an official's or a candidate's fitness for office. A standard of care "can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood." Curtis Publishing Co. v. Butts, supra, 388 U.S., at 153 (opinion of HARLAN, J.). A standard of "relevance," on the other hand, especially such a standard applied by a jury under the preponderance-of-the-evidence test, is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those "vehement, caustic, and sometimes unpleasantly sharp attacks." New York Times, supra, 376 U.S., at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.

    We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office. for purposes of application of the "knowing falsehood or reckless disregard" rule of New York Times Co. v. Sullivan. Since the jury in this case was permitted to make its own unguided determination that the charge of prior criminal activity was not "relevant," and that the New York Times standard was thus inapplicable, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

    And see Garrison v. Louisiana, 379 U.S. 64, 73 (1964) ("In any event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.").

    2. The accusations of Obstruction of Justice

    Obstruction of Justice was released by the defendants in April 1996. It tells the story of the murder of Kevin Ives and Don Henry the night of August 22-23, 1987 in Saline County, Arkansas, and what it contends is incompetence and a cover-up by local, county, state, and federal law enforcement officials and prosecuting attorneys. It tells this story through the eyes

    17

    of Linda Ives, the mother of one of the murder victims, Jean Duffey, a former state deputy prosecuting attorney and former head of Arkansas' Seventh Judicial District Drug Task Force, and retired Police Chief and former Deputy Sheriff John Brown.

    Linda Ives has investigated the murder of her son for the last decade, after repeated stonewalling by everyone involved in each of the many purported "investigations" into the murder. Later, Jean Duffey and John Brown separately investigated, both starting in their official capacities and continuing on after they left their law enforcement positions. The three of them concluded that every law enforcement agency and prosecuting authority to investigate the deaths ended up stonewalling and covering up, including the Saline County Sheriff's Office, the Arkansas State Police, Arkansas' Seventh Judicial District (and Special) Prosecuting Attorney Dan Harmon and Deputy Prosecuting Attorney Richard Garrett, the Federal Bureau of Investigation, and the United States Attorney for the Eastern District of Arkansas.

    Since, in their opinion, the medical examiner, law enforcement, and prosecutors failed to do their jobs, Ives, Duffey, and Brown decided to make a film of their separate ordeals in trying to get to the bottom of the story of the murders of Kevin Ives and Don Henry. Ives and Duffey wrote the script and had control over the final product. The content was approved by Brown before the film was finally produced. In the film, it is stated that "[e]yewitnesses have implicated several people in the murders and subsequent cover-up including Prosecutor Dan Harmon, Deputy Prosecutor Richard Garrett, Sheriff Jim Steed, and Officers Jay Campbell, Kirk Lane, and Danny Allen." DX 1 & 1A.

    3. These allegations are a matter of "public concern"

    The Ives-Henry murders, the incompetence of the Arkansas Medical Examiner at the time, and the failure of seven local, state, and federal investigations to resolve it after a decade

    18

    are clearly a matter of public concern. This overall public controversy has produced hundreds of pages of newspaper articles in the Arkansas Democrat, Arkansas Gazette, Arkansas Democrat-Gazette, and Benton Courier. (Articles from the deaths to 1996 are in DX 25, compiled by Mrs. Ives.) A person in Mrs. Ives's position and the general public could certainly believe that those charged with enforcing the law failed to do so and engaged in a coverup. The First Amendment protects those seeking to expose cover-ups by those charged with enforcing the law. Compare White v. Fraternal Order of Police, 285 U.S.App.D.C. 273, 909 F.2d 512, 517 (1990) (allegation of drug use by police officer was protected speech). Numerous employment-related civil rights cases have held that allegations of public official misconduct were protected speech.

      There is perhaps no subset of "matters of public concern" more important than bringing official misconduct to light. [Thompson v. City of Starkville, Miss., 901 F.2d 456, 463 (5th Cir.1990).] In Brawner v. City of Richardson, Tex. [855 F.2d 187, 192 (5th Cir.1988)], we stated that "the disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection, especially when it concerns the operation of a [law enforcement agency]". [See also Thompson, 901 F.2d at 463 (the exposure of misconduct in a police department "should be classified as speech addressing a matter of public concern"); Conaway v. Smith, 853 F.2d 789, 796 10th Cir.1988) (per curiam) ("Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import.").] (first, second, and fourth bracketed material added; third in original)

    Davis v. Ector County, Texas, 40 F.3d 777, 782 (5th Cir.1994). Accord: Schultea v. Wood, 27 F.3d 1112, 1119 (5th Cir.1994) (letter about possible criminal acts committed by a public official were protected speech); Brawner v. City of Richardson, 855 F.2d 187, 191 (5th Cir.1988) (letter containing "serious allegations of possible police misconduct" related to a matter of public concern where letter was sent to the police chief, mayor, city council members, and reporters at a local paper and involved alleged cover-up of internal police investigations); Conaway v. Smith, 853 F.2d 789, 796 10th Cir.1988) ("Speech which discloses any evidence

    19

    of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import."); Brown v. Texas A & M University, 804 F.2d 327 (5th Cir.1986) (reports of possible financial improprieties by a public employee related to a matter of public concern); Wulf v. City of Wichita, 883 F.2d 842, 859 (10th Cir.1989) (disclosure of alleged misuse of drug fund); Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 829 (3d Cir.1994); Howze v. Virginia Polytechnical College, 901 F.Supp. 1081, 1099 (W.D. Va.1995); Myers v. Town of Landis, 957 F.Supp. 762, 767 (M.D. N.C.1996). While these later cases involve employment situations, they still find the First Amendment protects speech involving matters of public concern, including official misconduct and cover-up.

    The Henry-Ives murders were covered for years by the newspapers and local television. DX 25. At first, it became a story about former Arkansas State Medical Examiner Fahmy Malak's practically "off-the-wall" finding that the cause of the deaths was accidental, and that the two young men fell asleep on the railroad tracks in a marijuana-induced stupor and were run over by a train. After Dan Harmon was made Special Prosecuting Attorney by the Saline County Circuit Court and was given a special grand jury to do the investigating for him, Malak's theory of the cause of death was completely debunked by Dr. Joe Burton, a independent Medical Examiner from metropolitan Atlanta. This special grand jury investigated for nearly a year and concluded that Dr. Malak was wrong and that Henry and Ives were murdered and did not die an accidental death. The Special Grand Jury's report is an exhibit to Linda Ives' deposition. DX 3A, attachment.

    It turned out, however, that Linda Ives believed that Harmon was using the grand jury investigation as a way to cover-up his own drug activities. Even Kirk Lane believed it because, when he appeared before the grand jury, he was asked about Pulaski County investigations of

    20

    Harmon. Lane deposition, DX 7, at 23:16-23 :20.

    Not only was this matter consistently in the Central Arkansas newspapers, but a website devoted to it was created over two years ago: http://www.idfiles.com. The film Obstruction of Justice is also available for purchase through this website. Also, a book is in the works about the train deaths is being written by Mara Leveritt, an Arkansas journalist who writes for the Arkansas Times, and it should be published in 1998. Duffey deposition, DX 4, at 118-122.

    Also, three recent convictions in this court show that there is reason to be concerned about what goes on in Saline County law enforcement. Former Special and elected Prosecuting Attorney Harmon was later convicted in the Eastern District of Arkansas of five felonies, including racketeering by using his office to extort money from drug dealers. United States v. Dan Harmon et al., LR-CR-97-7 (E.D.Ark.); Linda Friedlieb, "Jury convicts Harmon; he blames FBI, media," Arkansas Democrat-Gazette, June 12, 1997; Linda Friedlieb, " 'Maximum' merited, judge says in giving Harmon 8-year term," Arkansas Democrat-Gazette, May 21, 1998.8 Also, Duffey's successor as Director of the Seventh Judicial District Drug Task Force was convicted of extortion on the job as a codefendant with Harmon. United States v. Roger Walls, LR-CR-97-7 (E.D.Ark.); Linda Friedlieb, "Convicted of extortion, former drug chief weeps," Arkansas Democrat-Gazette, January 15, 1998. At any rate, what goes on in Saline County law enforcement must is and has been a matter of public concern, as well it should be.

    This case must be considered "against the background of a profound national commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open, and


      8 He was convicted again in April 1998 of possession of methamphetamine and violating the terms of his presentence release. United States v. Dan Harmon, LR-CR-97-187 (E.D.Ark.); Seth Blomeley, "Harmon convicted on 4 drug charges; trial takes just 1 day," Arkansas Democrat-Gazette, April 14, 1998.

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    that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270. The federal Constitution does not moderate all disputes between individuals and unresponsive police officers. Rather, the political process is the ultimate check on local government." Bell, 746 F.2d at 1265. How does one disseminate information to give the political process a chance to be the check on local government?

    Based on this record, the defendants are entitled to First Amendment protection for their publication.

    D. The plaintiffs cannot show that the defendants acted with reckless disregard for the truth

    1. The reckless disregard requirement

      As stated above in Masson v. New Yorker Magazine, 501 U.S. at 510-11, a public official libel plaintiff cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with-actual malice, i.e., with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication," St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or acted with a "high degree of awareness of . . . probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964).

    As evidence of this reckless disregard, plaintiffs point to defendants' alleged failure to investigate further than they did. Plaintiffs also essentially claim that there was no source of information that defendants could rely on. Failure to investigate is not actual malice. New York Times, 376 U.S. at 279-80; Gertz v. Robert Welch, Inc., 418 U.S. 323, 329 n. 2 (1974). But, even assuming that if everything plaintiffs say is true (something not conceded, however), their moving papers state no more than negligence, and they fail in their burden under St.

    22

    Amant v. Thompson, 390 U.S. at 730-31:

    Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson's activities, he relied solely on Albin's affidavit although the record was silent as to Albin's reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin's words.

    These considerations fall short of proving St. Amant's reckless disregard for the accuracy of his statements about Thompson. "Reckless disregard," it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York.Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. State of Louisiana, 379 U.S. 64 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a "high degree of awareness of * * * probable falsity." 379 U.S., at 74. Mr. Justice HARLAN'S opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153 (1967), stated that evidence of either deliberate falsification or reckless publication "despite the publisher's awareness of probable falsity" was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

    2. The reckless disregard requirement promotes First Amendment values

    The Court went on to explain that the First Amendment requires this heavy standard to promote the free exchange of ideas in the intellectual marketplace.

      It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendants testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recov-

    23

    ery fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.

    St. Amant, 390 U.S. at 731-32.

    3. What defendants relied upon

    The defendants made, in the plaintiffs' characterization, a "purported" documentary film about a murder and its cover-up by law enforcement. Defendants were telling the story through Linda Ives, Jean Duffey, and John Brown. Ives and Duffey had virtually complete editorial control over the script, and Mr. Matrisciana relied on them to make it accurate. Defendant talked with all three of them when the film was being produced. Mrs. Ives testified that the final script actually softened the allegations made against Campbell and Lane and merely stated that they were listed as suspects and not as actually being involved in the murders.

    a. Linda Ives

    Linda Ives is the mother of Kevin Ives, one of the young men who was murdered. She has devoted the last ten and a half years to finding the killer(s) of her son. She was listed in the complaint as an agent of defendants (Complaint é 6), and deposed by the plaintiff. DX 3.

    She testified that she cooperated through all these investigations, only to be stonewalled by incompetence and corruption. The first had an erroneous conclusion because Dr. Malak, the Chief Medical Examiner of the State of Arkansas, either did not know what he was doing or he was part of a cover-up, too. (We will assume here that it is the former.) After Dr. Malak

    24

    determined that the two young men died an accidental death from falling asleep on railroad tracks in a marijuana-induced stupor, Mrs. Ives worked with Special Prosecuting Attorney (and later elected Prosecuting Attorney) Dan Harmon and a Special Saline County Grand Jury empaneled to investigate the deaths. After the county hired Dr. Joe Burton, an independent forensic pathologist, who reviewed the case and testified both in person and by videotape, the special grand jury concluded that Dr. Malak was incorrect and the young men were murdered. DX 3A, exhibit. During this grand jury, Ives was told by Harmon that the real killers would soon be brought before the grand jury, and plaintiffs were then brought in.

    She also learned from Deputy Prosecuting Attorney Richard Garrett and John Brown that the plaintiffs were suspects early in the investigations.

    When the Arkansas State Police investigation wound down to nothing, Ives obtained the file under the Arkansas Freedom of Information Act and read it. It was apparent to her that the investigation was likely only an effort to build a pile of paper to give the illusion that a real investigation was conducted. Nevertheless, she pieced information together from various reports9 and in her affidavit (DX 3A) that led her to believe that plaintiffs were suspects. This is because Campbell and Lane fit the description of the police officers that allegedly abducted her son and Don Henry from the Ranchette Grocery in Alexander, Arkansas the night of the murders, they were capable of violence, and others put them at the scene that night.

    Also, Ives and Duffey regularly talked with Phyllis Cournan of the FBI about the FBI investigation into the death. Cournan considered plaintiffs suspects, but Cournan complained


      9 The portions of the Arkansas State Police report that plaintiffs put into the record as Exhibit 1 to the depositions of Matrisciana (DX 2), Ives (DX 3), and Duffey (DX 4). Here, it only is attached to Ives's deposition to save paper and space. (The documents in this exhibit were put in chronological order for simplicity, so they are not in the same order as in the depositions.

    25

    that she was not permitted to polygraph them. Finally, one of her superiors talked to Linda Ives and told her that perhaps she should just accept that maybe a crime had not occurred, something hard to do in light of a nationally renowned forensic pathologist having told her and a Saline County Grand Jury that her son and his friend were clearly murdered.

    Ives was asked in her deposition if she talked to plaintiffs about whether they were involved in death of her son, and she said that she chose not to directly ask those she believed did it.'° Based on what she knows, she still believes that they were involved in the murders.''

    b. Jean Duffey

    Jean Duffey was a deputy prosecuting attorney in the Seventh Judicial District, and then she became Director of the Seventh Judicial District Drug Task Force. Early on, she was told by her superiors that certain persons were "off limits" to her drug task force. Later, when Harmon was the prosecutor-elect, he induced the board of the Drug Task Force to fire her, and they did. Ultimately, she left Arkansas for Texas and became a school teacher, allowing her law license to lapse for non-payment of bar dues and a CLE deficiency. (She has since had her law license reinstated.) Years later, she became friends with Linda Ives and they joined together to investigate corruption of law enforcement in Saline County. She reviewed the Arkansas State Police file, and she also concluded that Campbell and Lane fit the descriptions of the killers of Kevin Ives and Don Henry.

    With her brother, Duffey maintains the previously-mentioned website that addresses law


      10 Ives Deposition, DX 3, at 31:22-25:

      Q. Did you ever try to contact Jay Campbell or Kirk and get their side of it?

      A. Did I call and ask them if they killed my son, no.

      11 Mrs. Ives' personal belief is that "Jay Campbell and Kirk Lane murdered Don and Kevin" and she "will go to my grave believing that." Id. at 47:8-10.

    26

    enforcement corruption in Saline County: www.idfiles.com. It covers the entire gamut of Dan Harmon's doings, her firing and exile to Texas, the train-deaths, and the coverup through the various investigations.

    Duffey made it clear to Matrisciana that she wanted the story of the train deaths and her experiences in Saline County to be accurate. He testified repeatedly that he relied on her findings and beliefs as well.

    c. John Brown

    When he began his role in the Ives-Henry murder investigation, John Brown was a deputy sheriff working in the Saline County Sheriff's Office Criminal Investigation Division. After he was told by the Sheriff to stop investigating it, and after he left his job with Saline County, he continued to investigate on his own. He ran for Sheriff in Saline County in 1996, and he touted his role in making of Obstruction of Justice in his campaign. Herman Reeves affidavit, DX 13, é 5 (quoted infra).

    i. Brown's affidavit for plaintiffs

    Brown signed an affidavit on March 19, 1998 in which he claims the following:

      3. Pat Matrisciana asked me about a statement that people allegedly meeting the description of Jay Campbell and Kirk Lane pulled up next to a telephone booth where Kevin Ives and Don Henry were; grabbed the boys; threw them in the back of a police car; and drove away with them on the night of the boys' death and I told him that any such statement was uncorroborated and I did not think that there was anything to it.

      4. I also told Mr. Matrisciana that he should not implicate Jay Campbell or Kirk Lane as being involved in the deaths of Kevin Ives and Don Henry because there was no documented justification for such an implication. I warned him against making such a statement in the video and told him that if he made such statements he would be sued. In fact, prior to the video being produced I even informed Mr. Matriciana [sic] that I had a signed confession from an individual (unrelated to Jay Campbell and Kirk Lane) taking responsibility for the deaths of Kevin Ives and Don Henry.

      5. I have watched the video and since watching it have not told Pat Matrisciana that the statements in the video pertaining to Jay Campbell and Kirk

    27

      Lane are true. After watching the video I did notice, however, that the portions of the video containing statements from me were edited to give the appearance that I made a statement that was never made by me.

    John Brown affidavit, DX 10, é s 3-5. This was in the context of denying that he was a source for the Campbell-Lane allegations in the film. Id. é 2.

    ii. Information contradicting Brown's affidavit

    Mr. Brown's affidavit is untrue. It is belied by videotape used and not used in the making of Obstruction of Justice, his own words on a telephone call to defendant Matrisciana, and affidavits of others he has talked to. Why Mr. Brown produced this affidavit for the plaintiffs in the face of so much contradicting evidence is unknown.

    Minasian: David Minasian is a videographer who worked for Mr. Matrisciana on an as-needed basis. His deposition was taken April 10, 1998, and it is DX 5. Minasian is the custodian of the raw footage from Obstruction of Justice, and he brought all the raw footage of John Brown with him to his deposition. The two videotapes are Exhibits 1 & 2 to his deposition (here DX 5), and here they referred to as DX 5-1 &; 5-2. He was deposed to disprove Mr. Brown's claim that he was edited out of context. Brown was videotaped for both Obstruction of Justice and The Clinton Chronicles.12 Brown told others on tape and in Minasian's presence and in a later telephone call to him that Campbell and Lane were suspects in the murders. Minasian made contemporaneous notes of the telephone conversation that corroborates this. David Minasian deposition, DX 5, at 16-19 (Exhibit 3 to his deposition). Minasian was aware of the alleged confession of Sharline Wilson, but Brown never explained the pertinence of it to him. Id. at 22-23. He also edited Obstruction of Justice and denied editing anything out of context. He said that a comparison of the final product with the raw footage would show that


      12 See footnote 14, infra.

    28

    this had not been done. Id. at 30-31. (Mr. Brown never stepped forward to state what was edited out of context. He refused to voluntarily appear for a deposition, and defendants declined to depose him in light of whatever they have already found on him. Minasian believes Brown saw the final before it was reproduced for sale.)

    In the raw video provided by Minasian, DX 5-2 (a partial transcript is DX 5-3), a group of men is videotaped talking among themselves. They are John Brown, Scott Wheeler, Gary Parks, Larry Nichols, and Arkansas State Police Officer Larry Patterson.13 (Nichols also provided an affidavit which is DX 12.) The date of the meeting is July 18, 1994, almost two years before the release of Obstruction of Justice:

      Parks: You mentioned Jay Campbell earlier.
        Brown: Yep. ... Watch what you say to Jay Campbell -- be real careful. Nichols: Who is Jay Campbell?
          Parks: I've known him about eight years.
            Brown: I don't care. You be r-e-a-1 careful.

          . . .

            Brown: The problem I have with it, he and Kirk Lane both, are very early on in the Henry and Ives homicide, the two boys on the tracks, their name appears as possible suspects along with a third name. And again they're listed as possible suspects, which was Larry Dill.

          DX 5-3.

          McKinney: Lt. Col. Tom Chase McKinney, a friend of Mr. Brown who has known him


            13 Larry Patterson was one of the Arkansas State Troopers involved in the infamous "Troopergate" article in the American Spectator magazine that led to the lawsuit against the President. Clinton v. Jones, 117 S.Ct. 1636 (1997), on remand, Jones v. Clinton, 990 F.Supp. 657 (E.D.Ark.1998). He was on the videotaping apparently for the purposes of making The Clinton Chronicles.

          29

          for four years, wrote in his affidavit:

          4. Every time John Brown has spoken to me about the Ives/Henry deaths, or spoken to someone else about it in my presence, he has spoken of Jay Campbell and Kirk Lane as being key suspects, along with Dan Harmon, in the boys' deaths. In fact, more than once, he has said to me and to Pat Matrisciana, when the three of us were alone in John's office, that he was convinced that Campbell and Lane had actually done the killing. At least twice, when discussing the case, John has described to me the scene in which the boys escaped temporarily and ran to the telephone booth in front of the convenience store; each time, he stated that it was Campbell and Lane who drove up to the booth in a police car, recaptured the boys, forced them into the car, and drove away.

          5. In my presence, when either the two of us were alone in his office, or when he, Pat Matrisciana and I were alone in his office, John has consistently spoken of Campbell and Lane as corrupt and dangerous men, with a pattern of abusing their power as police officers for their own illicit benefit.

          Tom Chase McKinney affidavit, DX 11, é s 4-5.

          Nichols: Larry Nichols14 wrote an affidavit, and he stated that he has "known John Brown since 1994 and ha[s], on a number of occasions, heard John Brown name Jay Campbell and Kirk Lane as suspects in the murders of Kevin Ives and Don Henry." Larry Nichols affidavit, DX 12, é 1. He also appears in the Minasian videotape which is DX 5-2. See transcript in DX 5-3.

          Reeves: Herman Reeves was an elected Constable in Saline County, and he is presently a Justice of the Peace in Saline County. He gave an affidavit saying that he worked on this murder investigation with John Brown, that he and Brown have become best friends, and that


          14 Yes, this is the same Larry Nichols that was fired from the Arkansas Industrial Development Corporation and appears in The Clinton Chronicles, also produced by Mr. Matrisciana and Citizens for Honest Government.

          The Clinton Chronicles, depending upon one's political leanings, is either pure political fiction or the absolute truth. Few people fall in between. The Rev. Jerry Falwell used to promote The Clinton Chronicles on his "Old Time Gospel Hour" as a way to inform the public about what he believes are the misdeeds of President Clinton both when Clinton was Governor and President. This is a perfect example of how "truth" is often a relative concept.

          The Clinton Chronicles is DX 24.

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          he considers him like a brother. Herman Reeves affidavit, DX 13, é 4. He further wrote in the affidavit:

          5. On numerous occasions John Brown has discussed with me his theory of the events surrounding them murders of Kevin Ives and Don Henry. According to John Brown: Sharline Wilson and Dan Harmon went to the tracks that night to pick up a drug drop and a number of other people were also there. When they arrived at the tracks, Dan Harmon got out of the car carrying a gun and walked down the railroad tracks. Sharline Wilson stayed in the car and did drugs while she waited for Harmon. Kevin and Don walked upon Harmon and the others on the tracks. Don fired one shot from his .22 rifle and everyone started running. Kevin and Don ran north, up the tracks toward Alexander where they met up with Keith Coney who was on his motorcycle. The three boys then rode the motorcycle to Ranchette Grocery on Highway 111 where Don attempted to make a telephone call from a telephone booth when Kirk Lane and Jay Campbell showed up and a scuffle ensued. Don's .22 rifle was leaning up against a pole and Kevin reached for the rifle. One of the police officers took the gun away from him and struck him on the left side of the head with the butt of the rifle. Kevin fell to the ground and was either unconscious or already dead. The police officers then threw the boys into their car and left with them. Keith fled on his motorcycle when the scuffle broke out and went to the Wagon Wheel to tell Keith McCaskle and Mike Crook what happened. Mike Crook didn't want anything to do with it, but Keith McCaskle went to the tracks. There is an eyewitness who gave descriptions of the police officers and the descriptions fit Kirk Lane and Jay Campbell.

          Id. é 5. He also stated that he was Brown's campaign manager when Brown ran for Sheriff in 1996, and Brown and he "promoted and displayed the video, Obstruction of Justice, while campaigning at public events such as town festivals, etc. Since its release, John Brown has also promoted the video on radio talk shows" and Brown never mentioned in any way that he was unhappy with the video or that it had been edited out of context. Id. é 6-7.

          Bennett: John Bennett, also a friend of John Brown, provided an affidavit in which he mentions that Brown told him that Harmon told the grand jurors one day that the real suspects in the murder would be testifying the next day, and Kirk Lane and Jay Campbell were brought before them the next day. John Bennett affidavit, DX 14, é 2 & attachment. On May 15, 1996, Bennett interviewed Brown for media purposes, and he attached a copy of the interview

          31

          to his affidavit. Id. és 3-4. On page 4 of the attached transcript, Brown states:

            Brown: . . . The video is very revealing . . . probably more revealing than I would want it to be.

            Bennett: By that do you mean more "revealing" because of the on-going investigation?

            Brown: Let's face it: this thing names suspects, you know? It names suspects. It goes into great detail. They obviously have done a lot of work. I understand from the people who did it, they spent two years making this video. You know, . . . being in law enforcement . . . there are some things you wish that just weren't on there, but they are, and there's nothing you can do about it.

            Bennett: You do believe the video is correct?

            Brown: As far as I can tell, everything on the video is 100 percent accurate. It's . . . when I say I've got a problem with it, the only problem I have is that they are publicly giving names of suspects here. Publicly giving names of people who were involved in the cover-up and, I guess, from the parents' viewpoint, it's time it got out; but, from a law enforcement stance, it's kind of a scary thing.

          Warren: Todd Warren works for Mr. Matrisciana, and he was responsible for booking Brown, Ives, and Duffey on radio talk shows by telephone to promote Obstruction of Justice. Brown appeared on 48 radio talk shows between April 3, 1996 and November 14, 1996 to promote the film, yet he never complained that it was incorrect. Todd Warren affidavit, DX 15, 3-5 & attachment.

          Wheeler: John Wheeler, Jr. interviewed Mr. Brown about the film and corruption in law enforcement in Arkansas, and Mr. Wheeler also gave an affidavit. John Wheeler affidavit, DX

          16 & attachment. The attached transcript, apparently published in December 1996 (id. at 1) states (id at 2-3):

          Q: How widespread is the government corruption down there in Arkansas, and specifically in Saline County?

          A: It's pretty widespread. I've just got to be careful how I comment about that

          . . . .

          Q: Well, you appeared on the Obstruction of Justice video saying that there's

          32

          evidence to implicate people in the deaths of these two boys. Have any of these people ever been brought to justice?

            A: No, sir, they have not.
            Q: Was that fact any part of your motivation in running for Sheriff?
            A: That would certainly have been part of my agenda if the federal agencies don't do anything. That at that point, sure.

          Mr. Brown states nothing about plaintiffs being named erroneously or wrongfully.

          Chastain: Jane Chastain has a Costa Mesa, California Christian radio program on station KBRT on which Mr. Matrisciana's staff arranged for Mr. Brown to appear at least four times. See Todd Warren affidavit, DX 15, attachment. She wrote an affidavit that she believed Mr. Brown has been on her program six times since Obstruction of Justice was released. Jane Chastain affidavit, DX 17, é 2. "As my guest, Mr. Brown has actively promoted the video and has stated something to the effect that he was involved in the production of Obstruction because he wanted the truth told. Mr. Brown has never suggested that he did not agree with the contents or message of the video." Id. é 3. Mr. Brown also expressed support for Sharline Wilson, and he never said that he thought she was involved in the murders of Kevin Ives and Don Henry. Id. 114

          Donahue: Karen Donahue, an employee of Mr. Matrisciana, wrote an affidavit that states that Obstruction of Justice was released in March 1996, and John Brown ordered 300 copies for himself for which he owes Mr. Matrisciana $2,679.50. Karen Donahue affidavit, DX 18, é 2 & attachments. If Mr. Brown was concerned that Obstruction of Justice was incorrect, it seems highly unlikely that he would have sold or given away 300 copies for his own purposes.

          In Summary: Brown has repeatedly affirmed to others that Obstruction of Justice is true and accurate since it was produced. And this takes us to Brown's reaffirmation of it to Matris-

          33

          ciana:

          iii. Brown's post-affidavit telephone call to Matrisciana

          About four weeks after Brown signed the affidavit for plaintiffs (DX 10), Matrisciana called Brown to seek an explanation of why he had inexplicably changed his position in this case. When Brown called back on April 15, 1998, Matrisciana recorded the telephone call without Brown's knowledge (DX 20 (affidavit about call) & 20A (transcript of call)). Because of the circumstances, Brown obviously had no expectation that the contents of this telephone call would remain confidentiality.15

          Editing the tape: Brown said that the tape was edited with his permission, not edited out of context as he said in his affidavit. DX 20A, at 5:5-5:8.

          Planting questions for the coming deposition to explain away the affidavit: Brown wanted particular questions asked so he could explain his affidavit. Id., starting at 9:10.

          Telling Matrisciana Campbell and Lane were suspects: One of the questions he wanted asked was:


            15 Cal.Pen.Code § 632 (the California Privacy Act) prohibits surreptitious recording of telephone calls where the unknowing party has an objective basis for believing that the telephone call would remain confidential.

            Brown can make no such claim here. Indeed, he said in the telephone call: "Let me bring you up to speed on what's happening here. On this affidavit thing, I hear you about went nuts. I should have probably told you more about it. But you need to understand what I'm doing and why I done it, okay?" (DX 20A, at 3:22-4:2) Further, "I mean, yeah, they're going to tag me a little bit over the affidavit, but I can -- I promise you, I can explain the affidavit off." (DX 20A, at 4:25-5:2). Also, Brown was relaying information to Matrisciana that he could give to his lawyer to ask Brown questions about Brown's upcoming deposition. Id. at 50:8-50:10. Compare Lopez v. United States, 373 U.S. 427, 438 (1963) (IRS agent was approached about a bribe; the defendant had no reasonable expectation of privacy that the conversation would not be reported to others, so he could not complain if it was recorded; tape admissible into evidence).

            Therefore, it was not illegal for Matrisciana to record this conversation to protect himself from a witness whom he had every reason to believe had sold him out.

          34

            "Have you ever had a conversation with Mr. Matrisciana about Kirk Lane and Jay Campbell being suspects, . . . The answer to that is going to be yes, okay? "Did you tell Mr. Matrisciana that Kirk Lane and Jay Campbell were suspects?" And the answer to that is, "Yes. We talked about them being, key word, possible suspects."

          Id at 10:17-10:25 & 11:12-11:17. He was quibbling over who could "designate them as a suspect," id. at 12:4, or as a "prime suspect," id. at 45:12-46:24.

            And then what I'm going to do is go into a little bit of narrative and say, "What happened was, their name had came up, they had been brought before a Grand Jury in 1988." There allegedly is a state police file, to there is a file that has a witness that named them. But prior to me looking at them, the FBI got involved in the case. Phyllis [Cournan] had promised me she was going to bring them in and polygraph them. She had talked to Linda or Gene [sic] about polygraphing them. And then, I find out from Phyllis that she talked to them in the hallway at the U.S. Attorney's office decides they had nothing to do with it, and that's what I shared with Mr. Matrisciana.

          Id. at 12:5-12:20 (bracketed material added). Then, Matrisciana's lawyer is to ask him in the deposition whether they were eliminated as suspects:

            Those guys were never eliminated, Pat. They're still a loose string hanging out there, they know they are. Nobody has ever got -- you know, we haven't got enough to say, "Yeah, we -- you did it," you know. We don't have enough to prosecute them. Then by the same virtue, there's not enough to turn them loose. See what I'm saying?

          Id. at 13:2-13: 10. He said that, essentially, his affidavit is incomplete because the plaintiffs did not want to hear all that he had to say. Id. at 13:20-13:24 & 37:12-37:16.

          Brown says that Campbell and Lane were told they were suspects when they were sitting outside the grand jury room. Id. at 6:9-6:15. This would have been 1988.

          He also told Mr. Matrisciana that he met Campbell and Lane once and they admitted to him that their names had come up early in the investigation. Id. at 20:3-20:16. Later, Campbell indicated " 'I have been involved in some shit, okay, and I'm not proud of it.' But he said, 'I, myself, was not involved in killing those kids.' " Id. at 32:17-32:20.

          35

          He also repeatedly told Mr. Matrisciana that Campbell had told him that Harmon had told the grand jurors that the killers would be appearing that day, and Campbell ended up being called in that day. Id. at 20:15-20:25.

          He said that FBI Agent Cournan was supposed to interview Campbell and Lane during her investigation of the murders, but she did not.

            And this was supposed to have been her scope, she was going to either make them on the case or eliminate them as suspects. Instead, she says her supervisor won't let them polygraph them, so she just talks to Jay in passing in the hall, and then says, "They didn't have anything to do with it." Refused to talk about it any further.

          Id. 27:22-28:4. "I.C. [Smith, then Special Agent in Charge of the FBI in Arkansas] was real interested to see what Phyllis had to say, and that -- he didn't say they have exposure, but he knew they had been named," but it has not been followed up on. Id. at 28:14-28:20 (bracketed material added). Cournan, however, did not deny that they had anything to do with it. Id. at 43:7-43:9. The FBI has not cleared them. Id. at 44:6. Cournan "says officially now that they have nothing to do with it. And at that point -- you and I and Linda can discuss all we want to anything prior to that that was used to develop the video." Id. at 44:18-44:22.

          He also said that the current local prosecutor is afraid of the case. Id. at 28:25-29:4.

          4. The fact defendants are not "mainstream media" is irrelevant

          The plaintiffs place great stock in the fact that defendant Matrisciana said that the "mainstream media" would not touch this story. Matrisciana deposition, DX 2, at 14.16 That is irrelevant. Indeed, to apply a differing standard to "mainstream" and "nonmainstream" media defendants would violate the First Amendment.


            16 Since the videotape sold about 300,000 copies (Matrisciana deposition, DX 2, at 7:17, 13:24) it is hardly a fringe publication. It has obviously proved itself to be a matter of public concern by numbers alone.

          36

          Because of technology, the pamphleteers and newspapermen of Seventeenth Century America are today's documentary filmmakers with a videocamera and website operators with access to a home computer.17 The First Amendment's guarantee of freedom of speech and of the press is a recognition of the role newspaper publishers and pamphleteers made to the American Revolution. See Powell v. McCormack, 395 U.S. 486, 531 n. 60 (1969); New York Times Co. v. Sullivan, 376 U.S. at 301; Jones v. City of Opelika, 316 U.S. 584, 600, 610 (1942) (STONE, C.J., dissenting). As to the explosive growth of the Internet and its potential effect on society and free speech, see Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997). Anyone with a $1,000 computer and a modem can have a website and maintain it him or herself.

          No one can deny the significant influence of the "non-mainstream media" in today's society. As recently as January 19, 1998, the so-called "Monica Lewinsky affair" was broken by a part of the "non-mainstream" media on the Internet, the "Drudge Report" (http://www.drudgereport.com),18 while Newsweek magazine wrung its hands over whether to even run it at all. See CNN Talk Back Live, January 29, 1998 (one guest was Matt Drudge). In addition, the instant access of the Internet has changed the way the "mainstream" media reports. See, e.g. Seth Schiesel, "The President Under Fire; The Internet: Cyberspace is On Alert for More Scandals," New York Times, January 26, 1998 (www.nytimes.com); Jack Schafer, "The Web


            17 In Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2334 (1997), it was estimated that 40 million people worldwide accessed the Internet in 1996 at the time of that trial, and it was estimated that 200 million people will by 1999. It is also estimated that there were approximately 9.4 million Internet host computers in 1996 with 60% in the United States.

          18 The Drudge Report does not archive its material on its website, but a Drudge Report subscriber gets it all by e-mail, and he had it on his computer and provided a copy of the Lewinsky story.

        37

        Made Me Do It," New York Times, February 15, 1998 (same).

        Also, how can we rationally give one group of media greater protection under the First Amendment than another? To do so would violate First Amendment equal protection unless there is a substantial overriding governmental interest. Police Department of Chicago v. Mosley, 408 U.S. 92, 98-99 (1972); Carey v. Brown, 447 U.S. 455 (1980). It would also stifle freedom of the press. How can a court rationally draw lines here? It can't.

        "One has a right to freedom of speech whether he talks to one person or to one thousand.

        One has a right to freedom of speech not only when he talks to his friends but also when he talks to the public." United States v. International Union, 352 U.S. 567, 595 (1957) (DOUGLAS,

        J., dissenting).

        IV. The proof of actual malice or reckless disregard is wanting

        A. They investigated and drew conclusions

        Linda Ives, Jean Duffey, and John Brown have been working on this case for years, and Linda Ives has for nearly eleven years.

        Linda Ives is the mother of one of the dead young men, and she wants the perpetrators brought to justice.(19) She has no reason and does not want to accuse the wrong persons with such a crime. She got access to the Arkansas State Police file under the state FOIA, and she concluded from it and other things that plaintiffs fit the description of the two police officers who an eyewitness saw abduct Kevin Ives and Don Henry from the parking lot at Ranchette Grocery in Alexander the night they were killed. Others drew the same conclusion in 1988 in


            19 "I absolutely do not want anybody prosecuted who is not guilty, because I want the killers of Kevin prosecuted. I think they deserve that. I think they owe them that. They don't owe me anything, but they owe that to Kevin and Don." Linda Ives deposition, DX 3, at 119:14-18.

          38

          a case in this court, United States v. Troy Warner. David Lewis affidavits and attachments to Ives affidavit DX 3A-1 -- 3A-7.

          Jean Duffey was a prosecutor in Saline County for several years, and she saw law enforcement corruption involving drugs and other things first hand. She also reviewed the Arkansas State Police file and concluded that plaintiffs fit the description of the police officers at Ranchette Grocery that night.

          Independently, John Brown, a law enforcement officer with fifteen years experience, investigated the case both as a part of his job as a Saline County Deputy Sheriff and privately after he left the Sheriff's Office. He concluded that plaintiffs were involved in the deaths of Kevin Ives and Don Henry. He has publicly stated this to many people, totally apart from participating in the making of the film Obstruction of Justice. He reaffirmed it in April 1998 to defendant Matrisciana in a telephone call made after his affidavit for the plaintiffs.

          Each has concluded that there is reason to believe that the plaintiffs were involved in the murders and various coverups. Defendants relied on the investigation and experience of Ives, Duffey, and Brown. In light of their knowledge and insight, it was neither unreasonable nor reckless to do so.

          But there is more: (1) The Saline County Special Grand Jury concluded in 1988 that the deaths were homicides; (2) The prosecutors running that grand jury in 1988, Dan Harmon and Richard Garrett, confirmed to Linda Ives that Campbell and Lane were suspects; (3) Phyllis Cournan confirmed to Linda Ives that Campbell and Lane were suspects in 1995 during the FBI investigation. All this was before the film was produced.

          The plaintiffs are public figures, and law enforcement performance and coverups are clearly matters of "public concern." New York Times and its actual malice or reckless disregard

          39

          standard applies here. The plaintiffs show by clear and convincing evidence that the defendants acted with reckless disregard for the truth of the statements. As the Arkansas Supreme Court stated in Fuller v. Russell, 311 Ark. 108, 113, 842 S.W.2d 12, 15 (1992):

            The question of whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Our review of the record reveals that appellant testified he believed his statements to be true. St. Amant instructs us that appellant's testimony that he believed he published the truth is of little consequence in making the actual malice determination. However, appellee simply failed to present any evidence of appellant's awareness of the probable falsity of the statements.

          Also, in Thomson Newspaper Publishing v. Coody, 320 Ark. 455, 462-63, 896 S.W.2d 897, 901-02 (1995), the Arkansas Court held that there was an insufficient showing of reckless disregard as a matter of law even where the newspaper there did not fully investigate and, as here, take the plaintiff's offer to explain.

            These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

          Here, there are no such doubts. The defendants, through their agents, Ives, Duffey, and Brown, had thoroughly investigated for years. The fact that reasonable people might come to differing conclusions about the material in the Arkansas State Police file is more, rather than less, reason to protect speech. Free speech, as along as the speaker does so without reckless disregard, is what enables people to inform the public so they may draw their own conclusions.20


            20 The fact that a libel defendant still resolutely believes the truth of the assertions does not add much to the calculus; Fuller v. Russell, 311 Ark. 108, 113, 842 S.W.2d 12, 15 (1992) (quoting St. Amant v. Thompson, 390 U.S. 727, 728, 731, 732 (1968)); Thomson Newspaper

          40

            [I]n Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the U.S. Supreme Court examined the effect of an "inaccurate description of what [the author] had actually perceived," and the Court noted that the "language chosen was 'one of a number of possible rational interpretations' of an event 'that bristled with ambiguities' and descriptive challenges for the writer." The Court concluded that the choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment's broad protective umbrella.

          Thomson, 320 Ark. at 464, 896 S.W.2d at 902 (bracketed material in original).

          The same applies here. The Arkansas State Police report and the other papers are voluminous. One could conclude that the Arkansas State Police file is nothing but a collection of paper designed to give the illusion that a true investigation occurred. Reasonable people might draw completely reasonable, yet differing, inferences from the reports in that file when coupled with all this additional information. The fact they do so makes their inferences or conclusions protected speech under Bose and Thomson, as it must be, lest free speech be chilled. What one sees in a collection of facts may be what one wants to see (as with the Clinton Chronicles), but, under Bose, that makes no difference under the First Amendment -- it is still protected speech.

          The subject of Obstruction of Justice has long been a matter of public concern involving public figures. The plaintiffs have failed in their burden of showing by clear and convincing evidence that the defendants acted with reckless disregard or actual malice. Therefore, defendants are entitled to summary judgment in their favor.

          B. The fact they did not do what plaintiffs would have done does not make them reckless

          The defendants admittedly did not contact the plaintiffs for their denial. Well, so what? If they did and the plaintiffs made their denial and the denial was not reported and the film was


            Publishing v. Coody, 320 Ark. 455, 463, 896 S.W.2d 897, 902 (1995); but, coupled with other things, like the curious investigations here, it might still show lack of reckless disregard.

          41

          made anyway, how would that have changed anything? Also, neither plaintiff has an alibi. Jay Campbell deposition, DX 6, at 26:24-27:6; Kirk Lane deposition, DX 7, at 27:2-27:6. Also, the law does not require them to do so.

          The defendants admittedly knew that Sharline Wilson supposedly "confessed" to being involved in the killings. No one fully credits this confession except the plaintiffs. John Brown, the person who took the confession, never credited it, because he still persists in his belief that the plaintiffs are suspects in the murder. Also, one can credit Wilson's confession to some extent, as does Brown, and still believe that plaintiffs were the two law enforcement officers, driving an unmarked car, who abducted Kevin Ives and Don Henry from the Ranchette Grocery store parking lot that night and took them to the tracks to be disposed of.21 If so, they are implicated in the murders.

          The defendants admit that someone at the FBI told Linda Ives that she should accept that maybe no crime occurred. But why would they do that when the state grand jury that questioned 125 witnesses concluded that it was a murder? Since when-does the FBI have a corner on the truth? If it ever did, it no longer does.22 Ives, Duffey, Brown, and the defen-


            21 Linda Ives deposition, DX 3, at 39:9-19:
            A. I believe Kirk Lane and Jay Campbell killed Kevin and Don. Q. On the railroad tracks?
            A. I think they were beaten there at that grocery store parking lot and taken up
            the hill on Alexander Mountain and finished off.
            Q. And then, after that, taken to the railroad tracks?
            A. Yes.

            22 The FBI Inspector General found that the FBI Crime Laboratory did all kinds of bad things from promoting junk science to false testimony to targeting African-Americans to wrongfully discharging its whistleblowers. See, e.g., the Inspector General's 517-page report: FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, April 1997 (available at www.criminaljustice.org/medialfbilabreport/fbilltoc.htm). It is also alleged that the FBI Crime Lab reports used in the Alcee

          42

          dants believe that the FBI was also involved in the coverup of the murder for whatever reason. FBI Agent Phyllis Cournan told them one thing, her superiors something else, and then she becomes scarce. Look at John Brown's antics since the depositions started. He obviously told plaintiffs what they wanted to hear and gave them an affidavit to back it up. Then, he tells Matrisciana that what he said all along before Obstruction of Justice was made and distributed was true: That Jay Campbell and Kirk Lane are still suspects in the murders. Since they are still suspects, the First Amendment guarantees to defendants the right to say it as they did. Protected speech "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270.

          C. Defendants' expert witness concludes that the defendants acted responsibly

          The defendants have obtained the services of an expert witness, Joseph Farah of Farah & Associates. He is the executive director of the Western Journalism Center, a non-profit tax-exempt foundation promoting journalism education and investigative reporting. Joseph Farah affidavit, DX 23 at 1, é 2.23 He has twenty years experience as a daily newspaperman, including service as executive news editor of the Los Angeles Herald Examiner and WorldNetDaily.com, a daily Internet newspaper. He has taught journalism at U.C.L.A. Id. és 2-3. He has


            Hastings criminal trial, 11th Circuit judicial discipline, and U.S. Senate impeachment proceedings were all bogus, too.

            In addition, the FBI fired one of its lab persons, Dr. Frederic Whitehurst, for being a whistleblower. The FBI settled his employment case, paying him an estimated $1,166,000 by an annuity and $258,580 attorney's fees for wrongful discharge. Whitehurst v. FBI et al., Civil 96-572(GK) (Dist.Col.Dist.Ct.). The FBI also manufactured false evidence to put in his employment file to give to prosecutors that were to cross-examine him after he went over to the other side. The FBI settled his Privacy Act claim for $300,000. (Counsel is informed that it was in the same case.)

            So, defendants do not accept any suggestion that the FBI is always worthy of belief.

            23 Affidavits under California law do not need to be notarized as long as they are signed under penalty of perjury.

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          written for the several California newspapers including the Los Angeles Times, San Francisco Chronicle, San Francisco Examiner, Orange County Register, and Sacramento Bee. He has also written for the Wall Street Journal, Boston Globe, and National Review. Id. é 4. He collaborated on the best-selling non-fiction book of 1994, SEE, I TOLD YOU SO, by Rush Limbaugh. Id. é 2. He has been an expert witness in defamation cases before. Id. é 6.

          Farah reviewed the video (DX 1) and the depositions, and the "concludes the producers of the video acted well within the confines of accepted journalistic standards and practices." DX 23, at 2 é 1. He notes that the story of the train deaths has been in the Internet and on radio talk shows for a long time, and the producers only took the story to a new medium, the video documentary. Id é 3

          Farah concludes from what he has heard, read, and seen about the train deaths, and he concludes that there is a government cover-up. Id. é 6.

          Farah finally concludes that permitting suits such as this to go to trial will hamper First Amendment rights because it will chill free speech. Id. 11 7. "It is [his] assessment, based on [his] review within their First Amendment-protected rights. In addition, from all indications, they seem to have upheld the highest journalistic standards and practices in their search for the truth." Id. é 8 (bracketed material added).

          V. Conclusion

          The plaintiffs' motion for partial summary judgment should be denied, and the defendants' motion for summary judgment should be granted dismissing this case.

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          Respectfully submitted,

          [Signature]
          John Wesley Hall, JR.
          Ark. Bar No. 73047
          NV 005012; IN 13129; DC 222315; NY 2 52400
          523 West Third Street
          Little Rock, Arkansas 72201-2228
          (501) 371-9131 / fax (501) 378-0888

          Attorney for Defendants

          CERTIFICATE OF SERVICE

          I, John Wesley Hall, Jr., certify that I have served a copy of this pleading on Darren O'Quinn, Dover & Dixon, 425 West Capitol, Suite 3700, Little Rock, Arkansas 72201 by personal service on May 29, 1998.

          [Signature]
          John Wesley Hall, JR.

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